Supplemental legal analysis provides additional support for Administration’s narrower interpretation of “waters of the United States.”

Sidley Austin LLP
David F. Asmus, Samuel B. Boxerman, Terence T. Healey, Kenneth W. Irvin, Michael L. Lisak and Judah Prero

July 12, 2018

On July 12, 2018, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued a supplementary notice of proposed rulemaking in support of its “Step One” proposal to rescind the 2015 Clean Water Rule. The 2015 Clean Water Rule interpreted “waters of the United States” as those with a “significant nexus” under the test articulated by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006). In February 2017, President Trump signed an Executive Order directing the agencies to consider rescinding the rule in favor of the “adjacency” standard articulated by Justice Scalia in Rapanos.

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Latest PFAS Developments

Holland & Knight
Dianne Phillips and Deborah E. Barnard

July 3, 2018

On June 19, 2018, the Massachusetts Department of Environmental Protection (DEP) Bureau of Waste Site Cleanup (BWSC) issued its Interim Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan (MCP Guidance). This follows the June 8, 2018 guidance, Final Recommendations for Interim Toxicity and Drinking Water Guidance Values for Perfluorinated Alkyl Substances Included in the Unregulated Chemical Monitoring Rule 3 (Drinking Water Guidance), from the DEP Office of Research and Standards (ORS). These documents were the result of an effort across DEP programs, which began in February 2018, to address the lack of enforceable federal standards for per- and polyfluoroalkyl substances (PFAS) in drinking water.

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The CERCLA Redevelopment Focus: Will There Be an Impact on Remedy Selection Decisions and Natural Resource Damage Claims?

Hunton Andrews Kurth LLP
Jeffrey N. Martin

July 5, 2018

The United States Environmental Protection Agency (EPA) concluded a series of eight Superfund Listening Sessions between May 21 and June 18 to explain a number of initiatives to reform the Superfund program and promote the cleanup and redevelopment of contaminated sites. The PowerPoint presentations used in these sessions can be accessed here. While informative, the sessions and PowerPoint slides used by the speakers also raise some interesting questions about potential changes in the remedy selection process and the restoration of damaged natural resources.

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EPA Recommends Use of Adaptive Management Techniques at Superfund Sites

Phillips Lytle LLP
Luke Donigan

July 20, 2018

Earlier this month, the United States Environmental Protection Agency (“EPA”) issued a memorandum that defines Adaptive Management (“AM”) and calls for its expanded implementation at Superfund sites across the country. The push for AM derives from one of many recommendations made by the EPA Superfund Task Force (“STF”), which was established by former EPA Administrator Scott Pruitt. As we previously reported, one of the former Administrator’s main priorities while in office was to revamp the Superfund program and restore it to “its rightful place at the center of the Agency’s mission.” The STF was established to further this goal and to “provide recommendations for improving and expediting site cleanups and promoting development.”

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PFAS: Pruitt Declares EPA will “Take Action” and Sets Four “Critical Steps” in Motion

DLA Piper
Adam Baas, George Gigounas and John E. Griffith, Jr.

May 23, 2018

The US Environmental Protection Agency (EPA) has begun its two-day National Leadership Summit in Washington, DC to address Per- and Polyfluoroalkyl Substances (PFAS) – a class of man-made chemicals that have been used since the 1950s in the production of a wide range of products that resist heat, stains, grease and water, including furniture protectants, floor wax, food packaging and firefighting foam.

The intent of the Summit, according to EPA Director Scott Pruitt, is to “bring together stakeholders from across the country to build on the steps we are already taking and to identify immediate actions to protect public health.”

The Summit attendees include representatives of 30+ states, 20+ agencies, 3 tribes, and dozens of industry and NGO entities.

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Issue Spotlight: Proper Hazardous Waste Storage And Disposal At Healthcare Facilities

Holland & Knight LLP
John S. Irving IV

June 4, 2018

With all of the regulatory obligations that hospitals and other healthcare facilities need to comply with, it might be easy to overlook an environmental law that can lead to significant trouble. Hospitals may find themselves in EPA’s sights over their handling of hazardous waste. Operators of healthcare facilities are encouraged to include this topic in their risk assessments and to consider environmental compliance audits.

The particular environmental law at issue is the Resource Conservation and Recovery Act, or “RCRA” (42 U.S.C. § 6901 et seq.). RCRA requires hazardous waste to be treated, stored and disposed of in compliance with permits and imposes recordkeeping requirements. It provides for civil penalties of up to $71,264 per violation and criminal penalties for “knowing” violations of up to two years in prison and a $250,000 fine for individuals, and up to five years of probation and fines of up to $500,000 for organizations.

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The Superfund Task Force: One Year Later

Dinsmore & Shohl LLP
Elizabeth T. Schindzielorz

May 31, 2018

It was this time last year that U.S. Environmental Protection Agency Administrator Scott Pruitt created a Superfund Task Force to “provide recommendations . . . on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country” under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., also known as the “Superfund.”[1] Approximately two months later, the Task Force produced a report with 42 recommendations which “can be initiated without legislative changes within the next year.”[2] The recommendations are intended to advance five overarching goals: expediting cleanup and remediation, re-invigorating responsible party cleanup and reuse, encouraging private investment, promoting redevelopment and community revitalization, and engaging partners and stakeholders.[3] The Task Force has published two quarterly reports since October 2017 to document its progress implementing these recommendations.[4] This article highlights two of the most recent updates to the body of Superfund guidance pursuant to Task Force recommendations.

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A Structured Guide to Soil, Air and Water Pollution Regulations in the USA

Beveridge & Diamond PC
James M. Auslander, Ryan J. Carra, Andrew C. Silton, Shengzhi Wang and Nicole B. Weinstein

May 1, 2018

Soil Pollution

Liability

What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?

The Comprehensive Environmental Response, Compensation and Liability Act (Superfund) and similar state laws. The Environmental Protection Agency (EPA) lists sites on the National Priority List based on a hazard ranking system. Liability under the act and state laws is typically strict, joint and several, and retroactive, even to legacy contamination sites. States also implement voluntary clean-up and brownfields programmes aimed at remediating and reusing legacy contaminated soil sites.

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Answers to 3 Key Questions About the Remediation of Superfund and Brownfield Sites Under President Trump’s Infrastructure Proposal

Buchanan Ingersoll & Rooney PC
Kimberly Arouh,  Edward G. Hild and Howard J. Wein

May 9, 2018

In addition to addressing the repair of roads and bridges, President Trump’s infrastructure proposal addresses a decidedly less popular infrastructure element — Superfund Sites and Brownfield Sites. It is worth looking at how President Trump’s proposed changes to Brownfield and Superfund revitalization may impact future infrastructure proposals. Additionally, with the House of Representatives passing the Brownfields Enhancement, Economic Redevelopment, and Reauthorization Act of 2017 late last year, President Trump’s infrastructure proposal could impact land revitalization before anything else.

 What are the key questions municipalities and companies should be thinking about as they examine the President’s proposed changes to Brownfield and Superfund reform? Here are the top three.What are the biggest changes to current Brownfield and Superfund cleanup funding proposed by President Trump’s Infrastructure Plan?

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Enforcement Principle 2: “Enhancing Cooperative Federalism”

Bracewell LLP
Kevin D. Collins, Jason B. Hutt, Ryan Eletto and Kevin Voelkel

May 7, 2018

On March 12, 2018, Acting Assistant Attorney General for the DOJ’s Environment and Natural Resource Division (“ENRD”), Jeffrey H. Wood, issued a U.S. Department of Justice (“DOJ”) memorandum titled “Enforcement Principles and Priorities” (the “Wood Memorandum”. The Wood Memorandum identified seven enforcement principles for the ENRD. We discussed portions of the Wood Memorandum in our April 19th and April 30th posts. Today, we will discuss the second principle, “Enhancing Cooperative Federalism.”

Enhancing Cooperative Federalism

The third enumerated principle in the Wood Memorandum discusses the relationship between ENRD and state governments in fulfilling environmental enforcement responsibilities.

Federalism is a system of government in which the federal government, the States, tribes, and local governments retain distinct, specified lawmaking powers.

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